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Posted

My English friend, who lives permanently in Phuket, has just phoned me from London with a question. He's there, on holiday, with his Phuket (Thai) girlfriend who's on her first UK visa.

Yesterday they went on the London Eye. During the security check before boarding, a pepper spray was found in the girlfriend's handbag. My friend didn't know it was there. She knew it was there, but didn't know it was illegal to carry such a thing in the UK. (How she managed to fly from Phuket to Bangkok to London without it being discovered is anybody's guess!)

The London Eye security people held the spray whilst they went on the big wheel. On disembarking, the girlfriend was promptly cautioned and arrested by the local constabulary. She was taken to a police station, (my friend had to make his own way there), fingerprinted, DNA'd and charged with, I guess, carrying an offensive weapon or whatever.

If I understood my friend correctly, she has also been summonsed or is going to be. I think I'm correct in saying she now has a UK criminal record.

My friend's question is: If she applies for a UK visa in the future will it be refused point blank? Or, are they sympathetic in a case like this where it's pretty obvious that she just made an innocent mistake?

Posted

Boom boom boom

Boom boom

Boom boob boom boom whistling.gif

Only a conviction on record will need to be shown on any visa application. With a bit of legal help they may drop the charges or a judge may be lenient and not record a conviction. Funny it made it through customs. Might try that next trip ph34r.gif

Posted

Boom boom boom

Boom boom

Boom boob boom boom whistling.gif

Only a conviction on record will need to be shown on any visa application. With a bit of legal help they may drop the charges or a judge may be lenient and not record a conviction. Funny it made it through customs. Might try that next trip ph34r.gif

Good advice. Plead stupidity and beg the judge not to record the conviction.

Posted

When you say 'summonsed' what do you mean?

A couple of things could have happened, she could have been bailed (released from custody) to return to the police station at a certain date.

Was she charged with an offence? She could be cautioned, in which case there won't be a judge, or a court appearance. It will appear on her record as a caution. I recommend that your friend , if he hasn't done so already, get a solicitor who deals with criminal cases, as soon as possible and try to explain that the lady was ignorant of this particular law.

Whilst ignorance is not necessarily a defence, if she hasn't already been charged and the solicitor can do some sweet talking, it might be the case that the police don't take it any further, however, it sounds like some time has already passed and they've done whatever it is they're going to do, charged her with an offence, paperwork already in the system etc. In which case it's now up to the CPS (Crown Prosecution Service).

If she goes to court, it will be a Magistrates court, she will have the chance to explain why she thought it was ok to carry it.

A fair point would be that she had just come through all the airport/immigration/customs etc. with it and it's legal to carry in her home country, had she known it was illegal she would never have carried it etc. etc. The magistrate may decide she made an honest mistake.

To be honest, the custody sergeant should have already made that decision, put her forward for a caution, which can only be done by a more senior officer, that may be why she was bailed to return to the station (not sure if that's the case as you didn't know/mention that).

It used to be the case where you could argue these things with the police officers at the scene and they would use their judgement. These days it's all a little more 'correct' they just nick you, do the paperwork and let someone else worry about whether or not it's a complete waste of time. Seeing as it was the security people who called them (personally, i would have just taken it from her but everything's 'by the book' these days) and it was in front of a major tourist attraction, there wouldn't have been much chance of any negotiations. Sensible copper (sergeant usually) would have assessed the lack of danger to the public, chucked it in the river and told her off.

Hope she's ok and that this gets sorted out as soon as possible.

Cheers,

Biff

Posted

When you say 'summonsed' what do you mean?

A couple of things could have happened, she could have been bailed (released from custody) to return to the police station at a certain date.

Was she charged with an offence? She could be cautioned, in which case there won't be a judge, or a court appearance. It will appear on her record as a caution. I recommend that your friend , if he hasn't done so already, get a solicitor who deals with criminal cases, as soon as possible and try to explain that the lady was ignorant of this particular law.

Whilst ignorance is not necessarily a defence, if she hasn't already been charged and the solicitor can do some sweet talking, it might be the case that the police don't take it any further, however, it sounds like some time has already passed and they've done whatever it is they're going to do, charged her with an offence, paperwork already in the system etc. In which case it's now up to the CPS (Crown Prosecution Service).

If she goes to court, it will be a Magistrates court, she will have the chance to explain why she thought it was ok to carry it.

A fair point would be that she had just come through all the airport/immigration/customs etc. with it and it's legal to carry in her home country, had she known it was illegal she would never have carried it etc. etc. The magistrate may decide she made an honest mistake.

To be honest, the custody sergeant should have already made that decision, put her forward for a caution, which can only be done by a more senior officer, that may be why she was bailed to return to the station (not sure if that's the case as you didn't know/mention that).

It used to be the case where you could argue these things with the police officers at the scene and they would use their judgement. These days it's all a little more 'correct' they just nick you, do the paperwork and let someone else worry about whether or not it's a complete waste of time. Seeing as it was the security people who called them (personally, i would have just taken it from her but everything's 'by the book' these days) and it was in front of a major tourist attraction, there wouldn't have been much chance of any negotiations. Sensible copper (sergeant usually) would have assessed the lack of danger to the public, chucked it in the river and told her off.

Hope she's ok and that this gets sorted out as soon as possible.

Cheers,

Biff

Thanks to everyone for your replies so far...

Bifftastic - sorry, but I don't know anything more than what I've stated in my original post. I'm sure my friend said she'd been charged and he also said she had been summonsed, or was going to be. (I'm not knowledgeable about stuff like this.).)

As you say, common sense should be used in a case like this where the girl was, if anything, guilty only of being a bit thick.

Someone has posted elsewhere that pepper spray is actually illegal in Thailand. If this is true, it won't help her defence.

Posted

When you say 'summonsed' what do you mean?

A couple of things could have happened, she could have been bailed (released from custody) to return to the police station at a certain date.

Was she charged with an offence? She could be cautioned, in which case there won't be a judge, or a court appearance. It will appear on her record as a caution. I recommend that your friend , if he hasn't done so already, get a solicitor who deals with criminal cases, as soon as possible and try to explain that the lady was ignorant of this particular law.

Whilst ignorance is not necessarily a defence, if she hasn't already been charged and the solicitor can do some sweet talking, it might be the case that the police don't take it any further, however, it sounds like some time has already passed and they've done whatever it is they're going to do, charged her with an offence, paperwork already in the system etc. In which case it's now up to the CPS (Crown Prosecution Service).

If she goes to court, it will be a Magistrates court, she will have the chance to explain why she thought it was ok to carry it.

A fair point would be that she had just come through all the airport/immigration/customs etc. with it and it's legal to carry in her home country, had she known it was illegal she would never have carried it etc. etc. The magistrate may decide she made an honest mistake.

To be honest, the custody sergeant should have already made that decision, put her forward for a caution, which can only be done by a more senior officer, that may be why she was bailed to return to the station (not sure if that's the case as you didn't know/mention that).

It used to be the case where you could argue these things with the police officers at the scene and they would use their judgement. These days it's all a little more 'correct' they just nick you, do the paperwork and let someone else worry about whether or not it's a complete waste of time. Seeing as it was the security people who called them (personally, i would have just taken it from her but everything's 'by the book' these days) and it was in front of a major tourist attraction, there wouldn't have been much chance of any negotiations. Sensible copper (sergeant usually) would have assessed the lack of danger to the public, chucked it in the river and told her off.

Hope she's ok and that this gets sorted out as soon as possible.

Cheers,

Biff

Thanks to everyone for your replies so far...

Bifftastic - sorry, but I don't know anything more than what I've stated in my original post. I'm sure my friend said she'd been charged and he also said she had been summonsed, or was going to be. (I'm not knowledgeable about stuff like this.).)

As you say, common sense should be used in a case like this where the girl was, if anything, guilty only of being a bit thick.

Someone has posted elsewhere that pepper spray is actually illegal in Thailand. If this is true, it won't help her defence.

Ah, ok :) well, hopefully she'll just have been bailed to attend the police station again for a caution. Often the senior officer needed for that isn't available so they let you out, rather than filling up their cells without good reason.

A solicitor is definitely needed though, could be fairly expensive but will minimise any further complications, unless it's fairly certain she'll only be cautioned, in which case, she should just accept the caution and be very sorry whilst it's happening.

Write it off to experience and if she needs to apply for a visa again, just be honest about what happened in the application.

  • Like 1
Posted (edited)

A Sensible copper (sergeant usually) would have assessed the lack of danger to the public, chucked it in the river and told her off.

Then the sensible copper would have to nick himself for littering

ermm.giflaugh.gifthumbsup.gif

Edited by mikearmstrong
Posted

A Sensible copper (sergeant usually) would have assessed the lack of danger to the public, chucked it in the river and told her off.

Then the sensible copper would have to nick himself for littering

ermm.giflaugh.gifthumbsup.gif

:lol:

Posted

+1 bifftastic. + Humble apologies from the lady concerned,

She only needs to 'be' sorry when she's being cautioned :). At that point there's no point explaining anything like 'I didn't know it was wrong' etc. it's a done deal. After she gets out of the nick she can go back to being pissed off that some security guard ruined her holiday :)

Posted

Correct me if I'm wrong, but I don't think they ask you if you have a UK criminal record when applying for a visa. A Thai one, sure, but I can't imagine them asking about the UK. Thus it may well go unnoticed when applying for visas in the future. And, anyway, how could you mention this minor offence if there's nowhere to do so on the forms anyway?

Posted (edited)

Correct me if I'm wrong

Q6.9 of form VAF1:-

Do you have any criminal convictions in any country(including traffic offences)?

The question's the same for all application forms.

Scouse.

I stand corrected :)

Edited by dantilley
Posted

RFL10.1 When can I refuse under 320 (18)?

Paragraph 320(18) of the Rules states that an application should normally be refused if that person has been convicted of an offence in any country, which could have attracted a term of imprisonment of 12 months or more if the offence had been committed in the UK. ECOs should not refuse under 320(18) if the conviction is considered "spent" under the Rehabilitation of Offenders Act. Paragraph 320(18) will not apply where an applicant has been cautioned. When determining if a refusal under 320(18) is appropriate, the ECO must also take into account any human rights grounds and ensure that the refusal is both proportionate and reasonable.

(My emphasis)

Possession of an offensive weapon carries a maximum sentence of 4 years (see Sentencing manual) so if she goes to court and is convicted she may have a problem with future UK visa applications until the conviction is spent. Note that a refusal under Para 320(18) is based upon the maximum sentence that could have been given, not the actual sentence received. When the conviction becomes spent depends upon the actual sentence received (see RoO Act link above).

However, as highlighted above, if she just receives a police caution then it should not be a problem.

  • 2 weeks later...
Posted

Okay. My friend and his girlfriend (who carried pepper spray from Phuket to Bangkok to London) are now back in Phuket.

All she received from the cops was a simple caution. She wasn't charged with any offence, although she was fingerprinted and DNA'd and the details are recorded on the police database.

So, if I read post #15 correctly, it will not be necessary for her to mention the caution on her UK visa application next time she applies. Or does anyone think she should voluntarily admit she received the caution?

Just for the record: She carried the spray from Phuket to Bangkok to London in her handbag. Unbelievable! And there's more: She has flown Phuket-Bangok-Phuket, at least three times previously, each time with it in her handbag, and it's never been discovered by security!

I can't help but wonder, if the London Eye people hadn't found the spray, would Heathrow have detected it when her handbag was x-rayed for her return flight to Bangkok.

Thanks again for all your help.

Posted

So, if I read post #15 correctly, it will not be necessary for her to mention the caution on her UK visa application next time she applies. Or does anyone think she should voluntarily admit she received the caution?

Questions 6.9 of form VAF1A asks about convictions and 6.10 about charges which have not yet gone to court; so she could, in my opinion, safely answer 'No' to both of these.

However, question 6.14 asks

6.14 Have you engaged in any other activities that might indicate that you may not be considered a person of good character?
and the guidance notes say for this question
You should tell us if you have been involved in anything illegal not already covered in questions 6.9 - 6.13.

So, my inclination would be to disclose the police caution here. As already said, she cannot be refused under Para 320(18) just for a caution, so doing so should not have any adverse effect. However, not disclosing it might, particularly as details of the offence are on record should the ECO care to check. Not disclosing a material fact will not only result in a refusal but could also mean a ban from visiting the UK for up to 10 years.

I can't help but wonder, if the London Eye people hadn't found the spray, would Heathrow have detected it when her handbag was x-rayed for her return flight to Bangkok.
From my experiences, the security checks at LHR are far more thorough and stringent than those at BKK; so probably they would have done. What would have happened to her had they found it, I do not know; but I have a feeling it would have been more serious than a police caution. Looks like security at the Eye may have done her a favour!

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